Bottrill can't be retried, court rules

Retired pathologist Michael Bottrill has won his appeal to stop one of the victims suing him for a second time.

Dr Bottrill had appealed against a High Court decision granting a woman who developed cancer a retrial of her civil claim for exemplary damages.

The woman, whose name is suppressed, sued Dr Bottrill, alleging he misread four cervical smear slides between 1990 and 1994. She developed invasive cancer and had a hysterectomy and radiation treatment.

Her exemplary damages claim against him failed in 1999 but a judge later granted her another trial based on new evidence - that Dr Bottrill had misread many other cervical smear slides after Sydney laboratories re-examined 23,000 slides checked by the Gisborne pathologist.

In a written judgment issued yesterday, four of the five Court of Appeal judges ruled that the woman should not get a second chance at suing, although Justice Thomas, dissenting, said refusing her a new trial would be a miscarriage of justice.

The majority judgment said that if the primary purpose of exemplary damages is to punish, it should be directed to intentional wrongdoing, where the defendant knows the conduct is wrong.

Exemplary damages could be awarded for negligence only when the allegedly negligent person knew the risk of what he or she was doing and carried on either deliberately or recklessly.

The judges ruled that the Sydney evidence did not justify ordering a new trial because it did not address or bear on issues of Dr Bottrill's awareness at the times he read and reported on the plaintiff's smears.

The application for a new trial was dismissed, and counsel for both sides were told to submit memoranda if any questions of costs arose.

But Justice Thomas' strongly worded dissenting opinion said the case should proceed to trial.

A lawyer for other women affected by Dr Bottrill's misreading said yesterday's decision would not prevent another 49 Gisborne women taking legal action against the retired pathologist.

Vicky Anderson said her clients were seeking compensation, not exemplary damages, in a considerably different legal action.

- NZPA

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